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The Coalition Column

Transparency, Declassification, and the Obama Presidency

Lee White, September 2012

On January 21, 2009, stating, "My Administration is committed to creating an unprecedented level of openness in Government," President Barack Obama announced a sweeping series of transparency reforms.

In its first year, the Obama dministration implemented a host of policy changes designed to deliver on that promise.

In one of his first official acts, President Barack Obama revoked the Bush administration's Executive Order (EO) 13233. The Bush EO severely limited access by the public to presidential records and gave former presidents, their heirs and, for the first time vice presidents, the ability to delay or prevent the release of records.

In addition to revoking President Bush's executive order on presidential records, the President issued a Presidential Memorandum on Transparency and Open Government, and a Presidential Memorandum on the Freedom of Information Act (FOIA), directing all members of his administration to operate under principles of openness and transparency.

On March 19, 2009, Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA.

The memo rescinded the guidelines issued in 2001 during the Bush administration, by former Attorney General John Ashcroft. The Ashcroft FOIA Memorandum established a "sound legal basis" standard. Under this standard, agencies were required to reach the judgment that their use of a FOIA exemption was on sound footing, both factually and legally, whenever they withhold requested information. The Ashcroft guidelines had the practical effect of encouraging a presumption against releasing any questionable materials.

On December 8, 2009, the White House issued an Open Government Directive requiring federal agencies to take immediate, specific steps to open their operations up to the public. In addition to the directive, the Administration released the "Open Government Progress Report to the American People"—an analysis of the steps already taken to increase transparency and plans for future initiatives.

On December 29, 2009, the President issued Executive Order 13526 to significantly improve the system for classifying, safeguarding, and declassifying national security information, including the establishment of the National Declassification Center within the National Archives to conduct a unified and efficient declassification review of historically important older records. The President also issued a memo to the heads of federal agencies highlighting the importance of implementing these changes promptly and effectively.

Despite the issuance of these numerous executive orders and directives, as President Obama nears the end of his first term, how well has he done in meeting the commitment he made that his administration the most open, transparent and accountable in history?

On August 3, 2012, the Washington Post published an article entitled, "Obama administration struggles to live up to its own transparency promises." The Post concluded, "Three years later, new evidence suggests that administration officials have struggled to overturn the long-standing culture of secrecy in Washington. Some of these high-profile transparency measures have stalled, and by some measures the government is keeping more secrets than before."

For example, the National Declassification Center (NDC) was tasked by the Administration with reviewing and declassifying a 371 million-page backlog of records by December 2013. A recent status report shows the NDC will be hard pressed to come close to meeting that deadline. As of June 30, 2012, only 51.1 million pages have completed all processing and of that number 41.8 million pages have been released to the public.

The Post also found that there was initially improvement by federal agencies in the number of FOIA requests that were granted in 2010 and that backlogs of requests had decreased. But in 2011, the trend reversed with agencies denial of requests increasing by 10 percent.

To provide a "boots-on-the ground" assessment of the Administration's transparency initiatives, we asked four experts on government access issues to weigh in with their opinions.

Steven Aftergood (Director of the Project on Government Secrecy at the Federation of American Scientists and the publisher of the blog Secrecy News)

In retrospect, the Administration erred in making its early public statements promising unprecedented transparency. The President raised expectations so high that the ensuing disappointment was inevitable. The smarter move would have been to demonstrate openness in actions, not in words, and to exceed public expectations.

Despite widespread disillusionment, the truth is that there have been several significant breakthroughs in transparency in the Obama Administration. For the first time ever in the nuclear age, we now know the size of the U.S. nuclear weapons arsenal. We also know more today about U.S. intelligence spending than we ever did before (and we know more this year than we did last year). That's another multidecade secrecy controversy that has now been resolved in favor of disclosure. There are several other precedent-setting disclosures to the Administration's credit.

Although we talk about "the Obama Administration," secrecy policy in the executive branch is really defined at the agency level, and only superficially at the White House level. And the reality is that agencies have responded quite differently to Administration directives on openness. In my experience, the Department of Defense (at least at the Office of the Secretary of Defense level) and the Office of the Director of National Intelligence have become increasingly responsive and forthcoming. The Department of Justice and the Department of Homeland Security are harder to work with. In my opinion, the Central Intelligence Agency is hopeless. The point is that the White House only bears a partial share of responsibility for government transparency. Most of the credit or blame has to go to the individual agencies.

The Administration's actions (or inactions) are necessarily responsive to the behavior of Congress. But the peculiar thing is that Congress today does not support secrecy reform or a broad increase in transparency. To the contrary, congressional leaders have actually legislated to block disclosure (in the case of detainee photos), and have pressed for stronger controls on classified information. In this political climate it becomes vastly more difficult to fulfill the kind of promises that the Administration started with.

Thomas Blanton (Director of the National Security Archive at George Washington University in Washington, D.C.)

There are obviously some differences of opinion on this subject. My own is that too often we conflate "the Obama administration" with actions of specific agencies or specific bureaucrats, when in fact the policy decision at the top has been pretty good, just stymied by ongoing bureaucratic obfuscation in the middle and the bottom. Or even worse, continuity by federal career employees of Bush policies that the White House has not succeeded in changing.

Where there have been specific policy decisions by President Obama, the record is very good. In fact, compared to the Bush years, I would say the difference is night and day.

Some examples:

The Bush Administration's Presidential Records Act executive order—President Obama revoked the Bush executive on his first day in office. Historians had been embroiled in legal efforts to get the Bush order reversed in federal court for years. The Obama executive order restored the presumption that the incumbent president, not former presidents, their heirs or designees should be the one asserting claims of executive privilege.

FOIA guidance: Bush/Ashcroft said find any reason to withhold and we'll defend you. Obama/Holder specifically rescinded that and mandated a presumption of disclosure. The caveat is that the career lawyers at the Department of Justice (DOJ) did not actually change their litigation posture in a single case that we know of other than ones the White House was party to.

White House e-mail: The Bush administration fought vigorously against efforts to force the retrieval and release of millions of missing White House e-mails. The Obama administration settled the legal case, preserved the email, and put an electronic archiving system in place.

White House visitor logs: Again the Bush administration refused to release the logs of those visiting the White House. The Obama administration settled legal cases seeking access to the logs, and opened them after 6 months, but on a "voluntary" basis. The Administration is still is fighting the issue claiming they are presidential, when actually they should be agency/Secret Service records. So this is a case of unprecedented level of openness, but mixed on the legal status.

The biggest counterexample—and the one that has convinced the media by and large that Obama has broken his openness promises—is that the Justice Department has brought 6 whistleblower/leak prosecutions, more than all previous administrations put together. However, I believe this was not a policy choice of the White House, but a continuity problem from some career prosecutors, with whom the White House chose not to mess.

Truly, as Steve Aftergood has pointed out, the problem lies more with Congress than with Obama.

Anne Weismann (Chief Counsel for Citizen's for Responsibility and Ethics in Washington-CREW)

In my assessment, the administration's record on transparency is mixed. Without question, President Obama put strong, pro-transparency policies in place that really set the benchmark for a more open government. The problem has been in implementing those policies at the agency level. Agencies have been encouraged to make proactive disclosures, but they have shown little regard for the quality of and public interest in the information they are posting. And the administration has not provided them much guidance on this front.

On the FOIA front, we are starting to see some movement toward a more open approach, but it has been a very slow process. Too often the reflexive attitude of agencies—especially the Department of Justice—is to withhold in the face of FOIA requests. DOJ also has been a major roadblock in FOIA litigation. There is no discernible difference between the litigating posture DOJ is taking now in FOIA cases and that it took under the previous administration.

It also has been difficult to get access to statistics and information that would help us assess the progress that has been made. Up to now, DOJ has refused to provide public access to information on the number and nature of discretionary releases agencies are making, if that data is even collected. Yet that is the information that would best inform us whether the administration is living up to the president's transparency commitments.

In the end, there remains a lot of work to be done. With agencies facing even more budget cuts they will have an even harder time responding quickly and fully to FOIA requests. I remain optimistic, but it will take an even greater push by the president to get the executive branch in line on transparency issues.

I think it is a very mixed bag. There are strong indications that the initiatives and efforts of the Obama Administration have begun to institutionalize changes in the attitudes of components of the Executive Branch, mostly in the area of domestic right-to-know. While the effectiveness of FOIA as a disclosure and accountability tool for the public continues to lag behind the promises the President and the Attorney General made, much more attention is being directed by agencies to improving the process, and agencies are putting more information out proactively (without requiring or waiting for a FOIA request)—and not just the usual stuff they want you to know. The greatest frustration on the domestic policy front has been the ongoing changes in policy personnel in the White House, creating problems of follow-through and consistency.

In the areas of national security, law enforcement, and the overlap of these, there have been some successes and in 2012, for the first time ever, the total amount of money requested for intelligence for the coming year was formally disclosed ($71.8 billion for fiscal 2013). This included the request both for the Military Intelligence Program (MIP), which was $19.2 billion, and for the National Intelligence Program (NIP), which was $52.6 billion.

Also, as Steve Aftergood recently noted, with little fanfare, the National Reconnaissance Office and the National Security Agency have been steadily declassifying and releasing historical intelligence records. The National Declassification Center, while it will not succeed in meeting the goal set by the President, has made inroads into addressing some of the complex procedural difficulties that have impeded declassification efforts. Its efforts will have little effect, though, if the critical problem of over- and unnecessary classification is not addressed. While the President asked the Public Information Declassification Board for recommendations toward a fundamental reform of the classification system, the outcome of that is not yet clear.

Still, the areas relating to national security, intelligence and law enforcement information have been those where the openness community has seen substantially less progress than we hoped and been much more disappointed. Some of this is due, at least in part, to a bureaucracy inherited from the previous Administration, but some seems to owe to an undue deference to those communities on the part of the White House.

In the final analysis, perhaps the White House's own self-assessment issued a year ago of its progress on transparency said it best.

"Yet much work remains. There is no 'Open' button that can be pushed to render the federal government more open overnight. Creating a more open government instead requires, as the President has instructed, sustained commitment—by public officials and employees at all levels of government."